Motion to Vacate, Set Aside, or Correct Sentence, § 2255 — United States v. Capps (D. Kan., Dkt. 321)

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Doc. 321 in Case No. 6:21-cr-10073-EFM-1 (D. Kan.), filed February 24, 2026, is Michael R. Capps's pro se Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 with Memorandum of Law in Support. The motion alleges ineffective assistance of trial counsel Kurt P. Kerns and appellate counsel Jacob Rasch-Chabot, and raises prosecutorial misconduct and jury-integrity claims under Federal Rule of Criminal Procedure 24(c). It asks the Court to vacate the conviction and order a new trial, or alternatively to vacate the sentence and order resentencing before a different judge, or at minimum to grant an evidentiary hearing under 28 U.S.C. § 2255(b). It closes with a verification dated February 24, 2026 and an exhibit list.

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Case 6:21-cr-10073-EFM Document 321 Filed 02/24/26 Page 1 of 62

FILED
U.S. District Court
District of Kansas

IN THE UNITED STATES DISTRICT COURT 02/24/2026
FOR THE DISTRICT OF KANSAS “By JAC Deputy Clerk
UNITED STATES OF AMERICA, Case No. 6:21-cr-10073-EFM-1
Plaintiff, Honorable Eric F. Melgren,

Presiding

MICHAEL R. CAPPS,
Defendant Pro Se.
DEFENDANT’S MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
WITH MEMORANDUM OF LAW IN SUPPORT
I. INTRODUCTION
Michael R. Capps, proceeding pro se, respectfully moves this Court pursuant to 28 U.S.C. §
2255 to vacate, set aside, or correct his conviction and sentence. His conviction resulted from a
trial infected by multiple constitutional violations, all of which were left unaddressed through the
ineffective assistance of both trial counsel Kurt P. Kerns and appellate counsel Jacob Rasch-
Chabot. No court has ever reviewed the full scope of the constitutional errors presented here; this
motion is the first and only opportunity for the complete record to be placed before a court with
authority to remedy the accumulated prejudice Mr. Capps has suffered.
The errors fall into four distinct but interlocking categories. First, and most compellingly, trial
counsel failed to object to two extended cross-examination exchanges in which the prosecutor
narrated the contents of unauthenticated documents through embedded question premises —

including a letter from Kerns himself to the government — while Mr. Capps repeatedly denied
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familiarity with the documents. The trial judge sua sponte identified this technique as improper
without any prompting from defense counsel. The jury then made its own documentary record of
the taint: two written questions submitted in open court, including the pivotal “Why would you
apply for a grant for a company you were closing?” — a question that tracks with precision the
inadmissible content from the second exchange and that proves the jury adopted that content as a
factual premise in its deliberations on the counts of conviction. Second, trial counsel failed to
preserve fundamental jury-integrity objections — specifically, the violation of Federal Rule of
Criminal Procedure 24(c)’s mandatory protections governing alternate juror substitution and
Rule 30’s reinstruction requirement — arising from the court’s own characterization of its
scheduling as “insane” and from an alternate juror who had forty unsupervised hours of exposure
to a high-profile media environment before rejoining the deliberating jury. Third, appellate
counsel compounded both trial-level failures by omitting from the direct appeal the stronger
structural error claim and the prosecutorial misconduct claim alike, despite receiving
documented written notice of both more than six months before the Opening Brief was filed.
Fourth, and independently, both trial and appellate counsel failed to challenge a sentencing
process that was constitutionally compromised from the outset: the day before sentencing, the
presiding judge directed substantive changes to the Presentence Report to inform the Bureau of
Prisons how Mr. Capps should be classified — demonstrating that a sentence of imprisonment
had been predetermined before Mr. Capps ever stood to address the Court in allocution.

This motion presents six claims across four constitutional categories. The accumulation of claims
is not a sign of weakness; it reflects the interdependent nature of the constitutional failures
documented in the record. Each claim identifies a discrete and independently cognizable failure,

but the constitutional significance of the combined effect is precisely what the cumulative error
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doctrine exists to capture. Claim Six frames that cumulative showing explicitly. The Court is
invited to assess each claim on its own merits and then to assess whether the combined effect,
across three independent categories of error, deprived Mr. Capps of a fundamentally fair trial and
sentencing proceeding.

Because both prongs of Strickland v. Washington, 466 U.S. 668 (1984), are satisfied for each of
these claims, and because the cumulative impact of these errors — spanning defense counsel
failures, prosecutorial misconduct, and judicial error — deprived Mr. Capps of a fundamentally
fair trial and sentencing proceeding, this Court should vacate his conviction and order a new
trial, or in the alternative, vacate his sentence and order resentencing before a different judge, or
at minimum, grant an evidentiary hearing pursuant to 28 U.S.C. § 2255(b).

II. JURISDICTION AND TIMELINESS

A. Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 2255. Mr. Capps was convicted and sentenced in
this district. He self-surrendered on December 31, 2024 to FPC Florence, Colorado; was
transferred to community custody at RRC Turley, Tulsa, Oklahoma on September 24, 2025; was
transferred to home confinement on February 10, 2026; and is scheduled for release to
supervised release on May 2, 2026, to be followed by a twenty-four month term of supervised
release. Home confinement and supervised release each constitute “custody” for purposes of §
2255. Jones v. Cunningham, 371 U.S. 236, 240-43 (1963); United States v. Cervini, 379 F.3d
987, 989 n.1 (10th Cir. 2004) (supervised release constitutes “custody” under § 2255); Oyler v.
Allenbrand, 23 F.3d 292, 293-94 (10th Cir. 1994). Moreover, the collateral consequences of the
conviction — including felon status, civil disability, and the conditions of supervised release —

independently sustain jurisdiction even after the custodial component is served. The motion
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challenges the legality of the conviction and sentence on grounds that they were imposed in
violation of the Constitution and laws of the United States.

B. AEDPA Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year limitation period
on § 2255 motions, running from “the date on which the judgment of conviction becomes final.”
28 U.S.C. § 2255(f)(1). A conviction becomes final when the Supreme Court denies a timely
petition for a writ of certiorari. Clay v. United States, 537 U.S. 522, 527 (2003).

The Tenth Circuit affirmed Mr. Capps’s conviction on August 13, 2024. United States v. Capps,
No. 23-3095 (10th Cir. Aug. 13, 2024). Mr. Capps timely petitioned the Supreme Court for a
writ of certiorari (Docket No. 24-6330). The Supreme Court denied the petition on February 24,
2025. The conviction became final on that date, and the one-year AEDPA limitation period
expires on February 24, 2026. This motion is timely filed on February 24, 2026, within that
period, by electronic submission through the Court’s CM/ECF system from Mr. Capps’s home
confinement address. The filing date is established by the electronic filing timestamp recorded in
CM/ECF, which constitutes the official record of filing for purposes of the AEDPA limitation
period. Because the motion was submitted electronically through the Court’s own filing system,
the filing date is a matter of electronic record and is not dependent on mail delivery or any third-
party intermediary. The District of Kansas permits pro se litigants who have been granted
CM/ECF access to file documents electronically from home confinement, and Mr. Capps
submitted this motion pursuant to that access. The CM/ECF timestamp of February 24, 2026,
controls, and the motion is therefore timely.

Independently, ineffective assistance of counsel claims are never procedurally defaulted.

Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Galloway, 56 F.3d 1239,
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1240 (10th Cir. 1995) (en banc). IAC claims may be raised for the first time in § 2255
proceedings “whether or not the petitioner could have raised the claim on direct appeal.”
Galloway, 56 F.3d at 1240.

C. Mootness — The Resentencing Remedy Survives Completion of the Custodial Term

Mr. Capps is scheduled for release to supervised release on May 2, 2026. Because this motion
will likely remain pending beyond that date, the Court must be satisfied that the requested relief
— including resentencing before a different judge — is not mooted by the completion of the
incarceratory term.

It is not. Spencer v. Kemna, 523 U.S. 1 (1998), narrowed the presumption of collateral
consequences established in Jones v. Cunningham, 371 U.S. 236 (1963), for habeas petitioners
who have fully completed their sentences. But Spencer does not defeat jurisdiction here for three
independent reasons. First, unlike the petitioner in Spencer, Mr. Capps has not completed his
sentence. Upon release from imprisonment he will begin a twenty-four month term of supervised
release with conditions constituting concrete, ongoing restraints on his liberty — conditions that
are traceable to the conviction and sentence challenged in this motion and that a resentencing
before a different judge could modify or eliminate. Supervised release constitutes “custody”
sufficient to sustain § 2255 jurisdiction. Cervini, 379 F.3d at 989 n.1. Second, the collateral
consequences of the underlying conviction are concrete, ongoing injuries that independently
satisfy Article III’s case-or-controversy requirement. Those consequences are not generic or
abstract. Mr. Capps, as a federal felon, faces a permanent bar on possessing firearms under 18
U.S.C. § 922(g)(1); has lost the right to vote in federal elections under applicable Kansas law for
the period of his sentence and supervised release; is categorically ineligible for federal student

aid under 20 U.S.C. § 1091(r); and faces permanent bars and disclosure obligations in connection
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with professional licensing across multiple industries in which he has operated. Vacatur of the
conviction — not merely resentencing — is necessary to restore these rights and eliminate these
disabilities. These are individualized consequences of this specific conviction that a resentencing
order alone could not address. Third, even if the custodial component is served before this
motion is adjudicated, § 2255 authorizes the court to “vacate, set aside or correct the sentence”
without limitation to the imprisonment component. Where the constitutional deficiency infects
the sentencing proceeding itself — as the predetermination evidence here establishes — the
remedy extends to all components of the sentence, including the term and conditions of
supervised release.

The government may argue that modification of supervised release is more properly sought
under 18 U.S.C. § 3583(e). That provision authorizes modification of release conditions as a
supervisory matter; it does not address the situation where the original sentencing proceeding
was constitutionally infirm. Where the challenge is not to the conditions of supervision as
currently administered but to the legality of the proceeding that imposed them, § 2255 is the
proper vehicle. Section 2255 authorizes the court to ‘vacate, set aside or correct the sentence’
and to ‘discharge the prisoner or resentence him or grant a new trial or correct the sentence as
may appear appropriate.’ 28 U.S.C. § 2255(b). The statute itself thus provides the express
authorization for the relief requested. The Supreme Court confirmed the same remedial scope in
United States v. Addonizio, 442 U.S. 178, 185-86 (1979), identifying § 2255’s authority to
discharge, resentence, grant a new trial, or correct the sentence; Addonizio denied relief on a
claim premised on the sentencing judge’s frustrated subjective intent arising from post-
sentencing Parole Commission policy changes, a category of claim materially different from the

Capps predetermination claim, which rests on documented extrajudicial communication by the
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sentencing judge establishing a predetermined custodial outcome before allocution. See also Hill
v. United States, 368 U.S. 424, 426-27 (1962) (establishing that constitutional and jurisdictional
sentencing violations are cognizable under § 2255, while non-constitutional, non-jurisdictional
errors are not); Davis v. United States, 417 U.S. 333, 343-45 (1974) (confirming § 2255’s
availability for constitutional violations and granting relief on that basis). Resentencing before a
different judge remains available relief under the court’s authority to fashion appropriate
remedies for constitutional violations. The Tenth Circuit has directed resentencing before a
different judge where circumstances make impartiality a legitimate concern. United States v.
Cudjoe, 534 F.3d 1349, 1356-57 (10th Cir. 2008) (remanding for resentencing by a different
judge upon government’s breach of plea agreement). The governing standard for when such
reassignment is appropriate derives from Santobello v. New York, 404 U.S. 257, 263 (1971),
which Cudjoe itself follows: courts may direct reassignment whenever the circumstances of the
original proceeding make impartiality a legitimate concern. In exercising that equitable authority,
the relevant considerations are whether the original judge would have difficulty setting aside
prior conclusions in the resentencing, whether reassignment would entail undue waste of judicial
resources, and whether the appearance of justice would be served by proceeding before a
different judge. All three considerations favor reassignment on these facts.

I. STATEMENT OF THE CASE

A. Indictment, Charges, and Trial Overview

A grand jury returned a nineteen-count indictment charging Mr. Capps with bank fraud, false
statements to a bank and to the Small Business Administration, wire fraud, and money
laundering in connection with the alleged fraudulent procurement of COVID-19 economic relief

funds for three business entities. Count 11 (wire fraud, Sedgwick County) was dismissed by
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agreement of the parties during trial, on December 13, 2022. R.3.448. The remaining eighteen
counts were submitted to the jury. Mr. Capps was convicted on twelve counts (Counts 1, 2, 4, 5,
7, 8,9, 10, 12, 13, 14, and 15) and acquitted on six (Counts 3, 6, 16, 17, 18, and 19). R.3.1178—-
1181. He asserted a good faith defense throughout.

B. The Pretrial Conference and the “Cockamamie” Trial Schedule (December 2, 2022)
The trial proceeded under an irregular, non-consecutive schedule that the district court itself
characterized as “cockamamie” at the December 2, 2022 pretrial conference. Concerned about
the length of the jury instructions — forty primary instructions spanning approximately fifty-
three transcript pages — the court proposed instructing the jury before opening statements: “it’s
an extraordinarily long set of instructions, and I told my law clerk we don’t have enough coffee
in the courthouse to keep the jury awake while I read that.” R.3.24. Both parties agreed to pre-
evidence instruction, though both later confirmed they believed the court would reinstruct the
jury at the close of evidence as well. R.3.948.

Trial began on December 12, 2022. The court read all forty primary jury instructions to the jury
before any evidence was presented. The instructions are designated Instructions 1 through 40,
spanning approximately transcript pages 281 through 334.

C. The Court’s Initial Refusal to Reinstruct (December 15, 2022 — Day 3)

On December 15, 2022 (the third day of trial, before the close of evidence), the government
asked whether the court intended to reread the instructions at the close of evidence. The court
responded: “Oh, believe me, not a chance.” R.3.948. Defense counsel then confirmed the mutual
expectation: “Although I called Alan about that exact question, and we both thought you were
going to reread them.” R.3.948. The court justified its refusal on scheduling grounds: “See, the

problem — and you all may have forgotten this because we’ ve already talked about this is a
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four-day trial and Monday will be our fourth day — but I’m in Oklahoma Tuesday.” R.3.948-49.
The court’s refusal was thus communicated and locked in before the close of evidence,
motivated expressly by the judge’s own travel schedule.

D. Defense Counsel’s Written Motion and the Formal Denial (December 19, 2022 — Day 4)
Following the court’s initial refusal on December 15, defense counsel filed a written motion
requesting that the court reread eight specific instructions before deliberations: Instructions 3, 5
through 9, 23, and 27, covering the indictment, unanimity, the government’s burden, the
presumption of innocence, reasonable doubt, and the good faith defense. R.1.121. The motion
did not cite Federal Rule of Criminal Procedure 30 or any rule-based legal authority.

On December 19 (Day 4 of trial), the court denied the motion: “I’ve a painful memory of a 45-
minute session in which I read instructions. . . . [I]t does compare to a Stephen King novel, is a
bit of a horror to go through that. I think it would be error for me to single out some instructions
as opposed to others. I think it would be cruel and inhumane to reread them all again.” R.3.960.
Defense counsel responded: “I understand.” “Understood, Your Honor.” “Thank you.” And,
when asked if anything further: “No, Your Honor.” R.3.960—61. No Rule 30 objection was
placed on the record.

E. The Court’s Acknowledgment That Jurors Cannot Rely on Memory Alone

The jury began deliberating on the afternoon of December 19, 2022. During deliberations, the
jury submitted a question: “Can we get a transcript of the testimony of Michael Capps from
today?” R.3.1162. The court denied the request and told the jury to rely on “collective memory”
and notes. R.3.1165—1166. This instruction to rely on collective memory was delivered
simultaneously with the court’s refusal to reinstruct the jury on forty legal standards it had

received a week earlier. The same jury that was told to rely on memory was the jury that had
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received forty instructions seven days earlier and had never heard them again. The jury’s
inability to retain same-day oral testimony is powerful circumstantial evidence of the limits of
juror recall under these conditions.

F. Alternate Juror Dismissal Without Media Admonition (December 19, 2022)

At approximately 2:29 P.M. on December 19, after closing arguments concluded, the two
alternate jurors (Jurors 13 and 14) were dismissed to the judge’s chambers. R.3.1158-1159. The
court told them only that it would “visit with you personally to thank you for your service and
discuss with you briefly what it means for your service as alternates.” R.3.1159. No admonition
regarding media coverage, internet research, or discussion of the case appears on the record at
this point.

By stark contrast, the twelve sitting jurors received an explicit, extensive media admonition from
the court on the same afternoon at pages 1167-1168, after the alternates had already been
dismissed: “I strongly admonish you not to read any press accounts of this trial. I always say
that, though very few trials get press accounts. This case has had a fair amount of media
coverage. .. . [S]ome of the press accounts may talk about matters that were not introduced at
trial from some background part of the story or whatever, which, of course, it’s inappropriate for
you to consider. So, just, for a variety of reasons, don’t read anything online or in print or listen
to anything on television or the radio about this case at all. Of course, don’t do any independent
research on this.” R.3.1167—1168. The court itself acknowledged that “this case has had a fair
amount of media coverage.” The alternates, who were about to be dismissed into that same
media environment without supervision, heard none of this admonition.

G. The Forty-Hour Unsupervised Window: Alternate Notified Monday Evening, Returns

Wednesday Morning

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The record establishes the precise timeline of the alternate’s exposure window. The jury was
discharged at approximately 5:31 P.M. on Monday, December 19. R.3.1169. Juror No. 2
informed the court that evening that she would not be able to continue. The alternate juror was
“quickly called” the same evening to advise him he would serve. R.3.1172—1173. Trial did not
resume until Wednesday, December 21, at 8:38 A.M. R.3.1172.

This means the alternate juror knew from Monday evening — approximately 5:30 P.M. — that
he would be the deciding juror in a case that had generated, in the court’s own words, “a fair
amount of media coverage.” R.3.1168. He had approximately forty hours between his
notification on Monday evening and the resumption of proceedings on Wednesday morning,
during which no court officer supervised his access to news, the internet, or communications
about the case. The record contains no admonition to this alternate — either at dismissal on
Monday or at recall on Wednesday — regarding media avoidance. R.3.1158—1159, 1173.

H. The Alternate Juror Substitution: The Court’s Announced Standard vs. Its Actual
Instruction (December 21, 2022)

When the parties convened on December 21, 2022, the court informed counsel that the
substitution had already been made. The court described to counsel the standard it intended to
apply: “Counsel, I’m just going to bring in the jury and talk to them about the requirement that
since we’ve substituted an alternate, they need to not presume any prior decisions that were made
but essentially review their deliberations from the beginning. So unless there’s anything that you
want to talk about, I’ll have Mr. Schmidt bring in the jury.” R.3.1173. Defense counsel said
nothing in response to the court’s direct invitation to raise concerns.

When the court delivered the actual instruction to the reconstituted jury, the language was

materially weaker: “You now have an obligation as a jury to at least reexamine all those

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decisions and make sure that the alternate juror who’s been added to your ranks has an ability to
participate in those decisions. And, obviously, if he is in complete agreement with them, that’s
great. If he wants to discuss them, then just like all of you have a right to discuss decisions
you’re making as a jury, he should be given that right. But he has the right and obligation for full
participation in decisions that you’re making. So in a way it’s like starting over, although you
can let him know where things are going on and allow him to participate, but I just wanted to let
you know that any preliminary decisions that you’ve made need to be reviewed for his consent
since all decisions from the jury have to be unanimous.” R.3.1174—-1175.

99 66

The gap between what the court told counsel (“not presume any prior decisions,” “essentially
review their deliberations from the beginning”’) and what it told the jury (“at least reexamine”;
“in a way it’s like starting over, although you can let him know where things are going on”) is
dispositive. The court articulated the correct legal standard to the lawyers — then failed to
deliver it to the people who needed to apply it. The final sentence of the instruction invited
eleven jurors to brief the new alternate on existing conclusions and seek his ratification — the
precise opposite of beginning anew. No voir dire of the alternate was conducted. No deliberation
materials were confiscated. No objection was entered by defense counsel. No consent from

Mr. Capps was obtained. R.3.1173.

I. Deliberation Timing

The jury deliberated for approximately two hours and fifty-one minutes on December 19 (2:29
P.M. to approximately 5:20 P.M.), without reaching a verdict. R.3.1162. On December 21, after
the alternate was substituted, the court recessed at 8:44 A.M. to await the verdict. The jury

returned its verdict at 3:47 P.M. R.3.1176. Total deliberation time on December 21 was

approximately seven hours. The jury thus deliberated approximately three hours in its original

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composition without reaching a verdict, and approximately seven hours in its reconstituted
composition before convicting.

J. The Court’s Own Characterization of the Trial Schedule

In dismissing the jury on the evening of December 19, the court stated: “I apologize again for
this crazy schedule. I have never done that to another jury. You are the unlucky winners of my
insane schedule.” R.3.1166. This acknowledgment — that the schedule was “insane,” that the
court had “never done that to another jury” — is the court’s own testimony that this was an
exceptional situation created by its scheduling conflicts, not by any legitimate pedagogical
choice.

K. The Prosecution’s Cross-Examination Exchanges (December 19, 2022)

During the cross-examination of Mr. Capps on December 19, 2022, AUSA Metzger conducted
two extended exchanges employing the same improper technique: narrating the contents of
documents Mr. Capps denied having seen, through question premises, without establishing the
authentication and foundation required by the Federal Rules of Evidence.

Exchange One (R.3.1003-1007). AUSA Metzger introduced and began eliciting the contents of
a letter addressed to the U.S. Attorney’s Office. Mr. Capps stated: “I’ve never seen this
document.” R.3.1003. Despite this denial, Metzger continued to question Mr. Capps about the
letter’s contents — eliciting references to Kerns’s own signature, the July 16, 2021 date, DOJ
letterhead, and the substance of page two. R.3.1004—1005. The document was authored by Kerns
himself — defense counsel’s own prior correspondence with the government. Judge Melgren
intervened at R.3.1004 without any objection from either party: “Well, counsel, if he’s not seen
the document, he can’t testify on it.””, The examination continued nonetheless. At R.3.1006, Judge

Melgren issued a full sua sponte intervention: “Counsel, if he’s not familiar with this exhibit, you

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can’t just have him read it to the jury as testimony. If he doesn’t know the exhibit, you cannot
solicit testimony from it. I don’t — I don’t know why we’re doing this.” Defense counsel Kurt P.
Kerns did not object at any point during Exchange One. No curative instruction was requested or
given.

Exchange Two (R.3.1054—1056). After the judicial intervention in Exchange One, AUSA
Metzger introduced an entirely separate document — a deposition transcript from Cybertron
International v. Michael Capps, Case No. 17-CV-876, an order-in-aid-of-execution proceeding
on May 20, 2021 — and embedded within his questions the proposition that Krivacy was in the
process of being dissolved or closed. R.3.1054. Mr. Capps stated “I’ve never seen this document
before” — twice — at R.3.1055. Despite four documented denials of familiarity with the
document, Metzger directed Mr. Capps to read aloud from it. R.3.1056. Mr. Capps again denied
recollection of the contents. The Cybertron transcript was used solely as a proposed refreshing
document under Federal Rule of Evidence 612. It was never moved into evidence by the
government, never admitted by the Court, and Capps specifically denied that it refreshed his
recollection. R.3.1054—1056. The transcript itself therefore communicated no admissible fact to
the jury. Unlike Exchange One, no judicial intervention occurred during Exchange Two; the
identical technique — narrating inadmissible content through question premises after a witness
denies familiarity — proceeded without check. Kerns did not object. No curative instruction was
requested or given. The Research Team’s review of the complete trial transcript confirmed that
no objection by defense counsel appears anywhere in the transcript pages covering Exchange
Two (R.3.1054—1060).

The Juror Questions (R.3.1080, R.3.1082—1083). Following the conclusion of cross-

examination, and while trial was still in session, the jury submitted written questions to the court.

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Juror Question 1, at R.3.1080: “Why would you apply for a grant for a company you were
closing?” This question tracks with precision the proposition embedded in Exchange Two — that
Krivacy was being dissolved or wound down — correlating directly with Count 10, the KDOC
Working Capital Grant for Krivacy, on which the jury convicted. Juror Question 2, at R.3.1082—
1083: “Are any of these three businesses still open, and if closed, why did they close?” This
question further demonstrates that the jury had absorbed the “closing” characterization: at least
one juror treated Krivacy’s closure as an established premise requiring explanation rather than as
an open factual question. The questions are part of the open trial record; they are not internal
deliberative communications subject to Federal Rule of Evidence 606(b). They are the jury’s
own contemporaneous written expression, submitted during the trial proceedings themselves,
that the inadmissible content had lodged in its analytical framework.

L. The Pre-Sentencing Email: Evidence of Judicial Predetermination (May 10, 2023)

Mr. Capps was sentenced on May 11, 2023 before Chief Judge Melgren in Wichita, commencing
at 1:59 P.M. R.3.1209. On May 10, 2023 — the day before the sentencing hearing — Chief
Judge Melgren sent an email directly to probation officer Jeffrey Blessant, copied to both
government counsel and defense counsel, directing substantive changes to the Presentence
Investigation Report. See Exhibit B. The judge directed the probation officer to correct
references describing Mr. Capps as a “Congressman” to instead reflect his status as a
“Legislator,” explaining: “I am concerned that ‘Congressman’ references may leave BOP with a
misapprehension.”

The significance of this language requires careful analysis. The alternative reading is
straightforward and must be confronted directly: a federal judge who corrects a factual

inaccuracy in a PSR before sentencing — substituting “Legislator” for “Congressman” — is

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performing a routine administrative function. PSRs are transmitted to BOP for facility
classification and programming purposes as a matter of standard practice, and every judge who
corrects a PSR fact before sentencing is aware that BOP uses that information. On this reading,
the email reflects factual conscientiousness, not a predetermined outcome.

That alternative reading, however, does not survive scrutiny of the email’s specific language.
The judge did not simply note a correction for accuracy. He expressed a concern about what
BOP would “misapprehend.” The word “misapprehension” is not the language of routine
correction; it is the language of a judge who has already assumed BOP’s operational role. A
judge correcting a factual error for accuracy’s sake would direct the change and move on; the
goal is simply that the record reflect the true state of affairs. But a judge who is concerned about
BOP’s “misapprehension” of a specific characteristic — the level at which Mr. Capps served in
government — is expressing concern about how BOP will categorize and house this defendant.
That concern is only operationally meaningful if BOP is already, in the judge’s mind, the
institution that will receive this defendant. Transmitting an accurate PSR to BOP is standard
practice; being concerned about how BOP will read a specific biographical detail is a different
matter entirely, because it reflects a presupposition about BOP’s custodial relationship with the
defendant. The BOP classification consequence does not attach unless a custodial sentence is
imposed.

The email is therefore documentary evidence that Chief Judge Melgren had predetermined a
custodial sentence before the sentencing hearing and before Mr. Capps was permitted to speak in
allocution. The government will argue that this inference reads too much into ordinary

administrative conduct. That argument is addressed directly in Claim Five, Section D below. The

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point here is that the email is not self-evidently benign, and its language repays the careful
attention this motion gives it.

Trial counsel Kurt P. Kerns received this email on May 10, 2023 and forwarded it to Mr. Capps
with the note: “Just in from Judge.” Despite receiving this evidence of judicial predetermination
on the eve of sentencing, trial counsel raised no objection; sought no recusal; made no challenge
to the legitimacy of the allocution process; and took no action to ensure that Mr. Capps’s
opportunity to address the Court would be genuine rather than ceremonial.

M. The Direct Appeal

On direct appeal, appellate counsel Jacob Rasch-Chabot raised one issue: the district court’s
refusal to reinstruct the jury at the close of evidence. Because trial counsel had failed to preserve
the issue with a proper Rule 30 objection, the Tenth Circuit reviewed for plain error and
affirmed, noting that while “we find support for Mr. Capps’s argument” on the merits, Mr. Capps
could not satisfy the requirements of plain error review. United States v. Capps, No. 23-3095,
slip op. at 7-8 (10th Cir. Aug. 13, 2024). The Rule 24(c) alternate juror substitution issue was
never raised. The prosecutorial misconduct from Exchange One and Exchange Two was never
raised.

No sentencing issue of any kind was raised, despite available grounds. First, appellate counsel
had actual possession of the Melgren email before filing the Opening Brief. Mr. Capps
forwarded the email chain to Rasch-Chabot on June 12, 2023 — specifically flagging the
predetermination concern in writing — and the Opening Brief was not filed until December 13,
2023, six months later. Second, on May 31, 2023, Mr. Capps forwarded to Rasch-Chabot a
complete memorandum setting out the prosecutorial misconduct theory from Exchange One and

Exchange Two with specific transcript page and line citations — more than six months before

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the Opening Brief was filed. The complete theory, with a roadmap to the record, was in
counsel’s hands. It was not raised. Third, a challenge to the procedural unreasonableness of the
sentence itself was available under the standard established in United States v. Cozad, 21 F.4th
1259 (10th Cir. 2022), where the Tenth Circuit vacated a sentence by Chief Judge Melgren as
procedurally unreasonable. No such challenge was made.

IV. LEGAL STANDARDS

A. Standard Under 28 U.S.C. § 2255

A federal prisoner may move to vacate, set aside, or correct a sentence imposed “in violation of
the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). Where the motion, files, and
records of the case do not “conclusively show that the prisoner is entitled to no relief,” the court
must grant an evidentiary hearing. Jd. § 2255(b).

B. Ineffective Assistance of Counsel Under Strickland

To establish ineffective assistance of counsel, a defendant must demonstrate: (1) that counsel’s
performance fell below an objective standard of reasonableness measured by prevailing
professional norms; and (2) that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). These standards apply equally to trial and appellate
counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). When an omitted claim is a “dead-bang
winner” — so obviously meritorious that a competent attorney would have raised it — both
prongs of Strickland are satisfied. United States v. Cook, 45 F.3d 388, 394-95 (10th Cir. 1995);
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003); Neill v. Gibson, 278 F.3d 1044, 1057

(10th Cir. 2001).

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The Tenth Circuit evaluates failure-to-object IAC claims through the three-tier framework of
Cargle and Neill: Tier 1 claims (plainly meritorious) directly establish deficient performance;
Tier 2 claims (some merit) may establish deficient performance; Tier 3 claims (meritless) do not.
Cargle, 317 F.3d at 1202. “A sufficiently meritorious omitted claim certainly can, by itself,
establish constitutionally deficient performance.” Jd. at 1205.

C. Structural Error Versus Trial Error

Federal law distinguishes between trial errors, which affect the trial process and are subject to
harmless error analysis, and structural errors, which “affect the framework within which the trial
proceeds” and require automatic reversal absent valid waiver. Weaver v. Massachusetts, 582
U.S. 286, 295 (2017). Structural errors are presumed prejudicial by their nature; no showing that
the error affected the outcome is required, and no quantum of evidence — however
overwhelming — can cure a structural defect.

D. Prosecutorial Misconduct Framework

The Supreme Court’s foundational condemnation of prosecutorial misconduct in Berger v.
United States, 295 U.S. 78 (1935), extends to prosecutors who narrate prejudicial facts not in
evidence through question premises. /d. at 84. Berger distinguished between misconduct that is
“slight or confined to a single instance” and that which is “pronounced and persistent” with “a
probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” Jd. at
89. Darden v. Wainwright, 477 U.S. 168, 181 (1986), asks whether the misconduct “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.”

The Tenth Circuit applies a two-part framework: first, whether the conduct was improper;
second, whether any improper conduct warrants reversal, assessed by considering “the curative

acts of the district court, the extent of the misconduct, and the role of the misconduct within the

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case.” United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir. 1996); United States v. Martinez-
Nava, 838 F.2d 411, 416 (10th Cir. 1988); United States v. Lonedog, 929 F.2d 568, 572 (10th
Cir. 1991). Where no objection was entered at trial, United States v. Olano, 507 U.S. 725 (1993),
governs plain error review — but on § 2255 collateral review the claim is properly channeled
through IAC, avoiding this standard entirely.

E. IAC Claims Are Never Procedurally Defaulted

Ineffective assistance claims may be raised for the first time in § 2255 proceedings, whether or
not they could have been raised on direct appeal. Massaro, 538 U.S. at 504; Galloway, 56 F.3d at
1240. Where IAC is established as cause for a procedural default, it simultaneously constitutes
the prejudice required to overcome that default. United States v. Harms, 371 F.3d 1208, 1211
(10th Cir. 2004). A freestanding prosecutorial misconduct claim, if procedurally defaulted, may
be reached once IAC provides the required cause and prejudice. Murray v. Carrier, 477 U.S.
478, 488 (1986); Coleman v. Thompson, 501 U.S. 722, 753-54 (1991).

V. ARGUMENT

The motion presents six claims. Claim One (prosecutorial misconduct) leads because it presents
the motion’s most viscerally compelling and least abstractly legal evidentiary configuration:
documentary proof, in the jury’s own handwriting, that inadmissible content lodged in its
analytical framework. Claim Two addresses the Rule 24(c) alternate juror substitution, which
involves a more technically involved structural error analysis but is independently established.
Claims Three through Six follow in order.

CLAIM ONE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL — FAILURE TO
OBJECT TO PROSECUTORIAL MISCONDUCT DURING CROSS-EXAMINATION

A. Overview — This Claim Approaches Dead-Bang Winner Status

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Of all the claims presented in this motion, Claim Two approaches most closely the “dead-bang
winner” standard under Cook, 45 F.3d at 394-95. Three independently compelling features
converge: the trial judge’s sua sponte intervention demonstrates the error’s obviousness without
any prompting by defense counsel; Kerns’s repeated silence across two separate exchanges
employing the identical improper technique, continuing through and after the judicial
admonition, eliminates any plausible strategic rationale; and the juror questions — the jury’s
own written contemporaneous documentation of its engagement with the inadmissible content —
converts speculative prejudice into demonstrated prejudice. No other claim in this motion rests
on evidence this direct and this contemporaneous.

B. Deficient Performance — The Dual Exchanges and the Court’s Interventions

When a trial judge identifies and corrects improper conduct without any party requesting it, the
error’s obviousness is objectively established as a matter of record. That is what occurred at
R.3.1004 and R.3.1006 of this trial. The government will argue that the judicial interventions
demonstrate that the system worked — that the court identified and managed the improper
examination without requiring defense counsel to act. That argument proves too much. The
court’s sua sponte interventions stopped the examination; they did not function as a curative.
Stopping improper examination is a stop signal, not a reset mechanism. The court drew the jury’s
attention to an evidentiary irregularity and then did nothing to direct the jury to disregard what it
had already heard. The jury was left with the content of the improper questions in its analytical
framework, with no instruction to set that content aside, and with the court’s own signal that
something had gone wrong — which amplified rather than reduced the jury’s likely attention to
the flagged material. An intervention that stops ongoing misconduct is a necessary response to

the problem; it is not a cure for the harm already done, and it is not a substitute for the defense

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counsel’s independent obligation to object and request a curative instruction. AUSA Metzger’s
technique in both exchanges was legally indefensible: when a witness denies familiarity with a
document, the foundation for its use collapses entirely, and the examiner’s proper recourse is
extrinsic evidence under FRE 613(b) — not continued narration of the document’s contents
through question premises, which transforms cross-examination into prosecutorial testimony in
violation of FRE 602 (personal knowledge), FRE 613(b) (foundation), FRE 611(a) (court control
over examination mode), and FRE 901 (authentication).

The mild first intervention at R.3.1004 — “Well, counsel, if he’s not seen the document, he can’t
testify on it” — established on the record that the technique was improper. The full sua sponte
intervention at R.3.1006 — “Counsel, if he’s not familiar with this exhibit, you can’t just have
him read it to the jury as testimony. If he doesn’t know the exhibit, you cannot solicit testimony
from it. I don’t — I don’t know why we’re doing this” — removed any possible ambiguity.
Kerns did not object to Exchange One. He then remained silent during Exchange Two, which
employed the identical technique — this time directing Mr. Capps to read aloud from a
document he had denied seeing four separate times — without any judicial intervention and
without a single objection from defense counsel.

Silence across two extended exchanges employing the identical improper technique, continuing
through the court’s own identification of the problem, cannot be characterized as strategy. A
single failure to object might be attributed to oversight. Two failures — the second occurring
after the judge had already flagged the technique as improper — suggest systemic abdication.
The “drawing attention” rationale, which sometimes excuses silence in the face of damaging but
marginal material, fails entirely when the questioning was already extended and prominent and

when the judge had already drawn maximum attention to the problem sua sponte. Under

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Cargle’s three-tier framework, 317 F.3d at 1202, this objection falls squarely at Tier 1: the
court’s own intervention establishes its merit without need for further analysis.

C. Kerns’s Conflict of Interest as Evidence of Deficient Performance on Exchange One

The deficient-performance showing on Exchange One is independently reinforced by an
additional factor: the identity of the document AUSA Metzger was narrating through question
premises. The letter at issue was authored by Kerns himself — a letter from defense counsel to
the U.S. Attorney’s Office. Kerns therefore faced a direct conflict of interest between two
competing interests: his personal interest in not drawing scrutiny to his own prior
communications with the government, and his client’s interest in an immediate objection to
improper examination based on that document.

Mr. Capps acknowledges that the Tenth Circuit has held that the presumed-prejudice standard of
Cuyler y. Sullivan, 446 U.S. 335 (1980), does not extend to personal-interest conflicts outside the
multiple concurrent representation context. United States v. Williamson, 859 F.3d 843, 858-59
(10th Cir. 2017); see also Mickens v. Taylor, 535 U.S. 162, 175-76 (2002) (leaving open
whether Cuyler applies beyond multiple concurrent representation). Accordingly, this section
does not invoke Cuyler’s presumed-prejudice standard or seek to relieve Mr. Capps of his
Strickland prejudice burden. Rather, the conflict evidence serves a distinct and more fundamental
function: it demonstrates why Kerns failed to object, establishing deficient performance under
Strickland’ s first prong.

Kerns’s silence during Exchange One — declining to object to improper examination premised
on his own letter, while that very letter’s contents were being narrated to the jury — is powerful
evidence that his personal interest adversely affected his professional judgment. Faced with a

document bearing his own name and implicating his own prior conduct with the government,

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Kerns chose silence over objection. A competent attorney without a personal stake in the
document at issue would have objected immediately, particularly after the court’s sua sponte
interventions at R.3.1004 and R.3.1006 had already identified the examination technique as
improper. The conflict is the most probable explanation for the pattern of silence the record
documents, given the specific circumstances: defense counsel’s own correspondence was the
foundation for the improper examination, the court had already flagged the technique as
impermissible, and the prejudicial content was being delivered in extended form rather than as a
passing reference. The alternative explanation — that a competent attorney made a strategic
calculation to remain silent while a prosecutor narrated inadmissible content from that attorney’s
own letter to the jury — is less persuasive on these particular facts because the “drawing
attention” rationale cannot operate where the judge has already drawn maximum attention to the
impropriety. The conflict evidence thus reinforces and independently establishes the deficient-
performance showing on Exchange One. The prejudice resulting from that deficient performance
is addressed in Section E below, where the juror questions provide documentary proof that the
inadmissible content from both exchanges — including Exchange One — lodged in the jury’s
analytical framework.

D. The Compounding Failure — No Request for Curative Instructions

Even after inadmissible content had reached the jury through both exchanges, Kerns had a
continuing duty to mitigate the damage by requesting curative instructions. He did not. The dual
failure — no objection and no curative instruction — represents a total abdication of the defense
function regarding these exchanges. Even where curative instructions are given, courts have
recognized that some prejudicial evidence creates so strong an impression that instructions are

insufficient to cure it. Maestas v. United States, 341 F.2d 493, 496 (10th Cir. 1965) (“where the

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character of [the evidence] is such that it will create so strong an impression on the minds of the
jurors that they will be unable to disregard it . . . a mistrial should be ordered”). If even a timely
instruction cannot always cure this category of prejudice, the complete absence of any instruction
leaves the taint entirely unremedied.

E. Prejudice — The Krivacy “Closing” Characterization and the Juror Questions as
Documentary Proof of Jury Impact

The prejudice analysis begins with the evidentiary record on Krivacy’s operational status at the
time of the August 19, 2020 KDOC Working Capital Grant application (Count 10).

A complete review of the trial transcript establishes the following: no government witness and no
government exhibit independently characterized Krivacy as closing, dissolving, or being wound
down contemporaneously with the grant application. Special Agent Campbell’s testimony
addressed revenue misrepresentations and payroll falsifications; he did not characterize
Krivacy’s operational status as one of closure. The FBI forensic accountant traced fund flows
and treated Krivacy as an operating entity with active accounts through mid-2020. No
documentary exhibit admitted by the government independently established that Krivacy was
closing during the August 2020 application period.

The only admitted evidence bearing on Krivacy’s operational status came from Mr. Capps’s own
testimony, which established financial deterioration and temporal ambiguity — not a completed
or committed decision to close as of the application date. On direct examination (Exchange One,
R.3.1003-1007), Mr. Capps testified that Krivacy was “not going to be survivable,” was “not
meeting to do any of its work any further,” and that its funds were transferred away “around the
August timeframe.” R.3.1004. This testimony constitutes properly admitted evidence of financial

distress and operational decline. It does not, however, establish the specific proposition that

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lodged in the jury’s deliberations: that Krivacy was a company being “closed” — formally
dissolved or legally wound down — at the precise moment of the grant application. Mr. Capps
described an evolving process of deterioration, not a completed or announced closure. His
“around the August timeframe” language does not specify whether the fund transfer occurred
before or after August 19, and his subsequent testimony placed the actual dissolution decision as
a “later stage” development. In response to Juror Question 1, Mr. Capps explicitly denied that the
company had committed to dissolution on August 19, 2020: “at the time of the application
Krivacy was not being dissolved. . . . we were fully committed to moving forward. There was no
intent to dissolve at that point in time.” R.3.1080.

The specific “closing” characterization that lodged in the jury’s analytical framework was not
derivable from Exchange One alone. It required the specific proposition embedded in AUSA
Metzger’s Exchange Two questions — that Mr. Capps had “applied for the dissolution of
Krivacy in August of that year” — which rested entirely on the Cybertron International civil
deposition transcript (Case No. 17-CV-876, May 20, 2021) that was never admitted into
evidence, never moved as an exhibit, and that Mr. Capps specifically denied refreshed his
recollection. R.3.1054—1056. As established in Section HI.K above, the Cybertron transcript was
used solely as a proposed refreshing document under Federal Rule of Evidence 612; it
communicated no admissible fact to the jury. The only admissible content flowing from
Exchange Two is Mr. Capps’s temporally ambiguous acknowledgment that “an effort to begin
the dissolution” occurred somewhere in “late Q3-Q4” of 2020 — a six-month window he
simultaneously denied predated the grant application.

The critical distinction between Exchange One and Exchange Two turns on temporal specificity,

not merely on the difference between financial distress and formal dissolution. Exchange One’s

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99 66.

evidence of financial deterioration — “not going to be survivable,” “not meeting to do any of its
work any further,” funds transferred “around the August timeframe” — establishes an ongoing
process of decline extending across a period whose boundaries remain unspecified. A juror
processing this evidence might conclude that Krivacy was in financial difficulty; that conclusion,
however, does not supply the precise temporal predicate that Juror Question | asserts.

Juror Question 1 does not ask why Mr. Capps applied for a grant for a company that was
struggling, or declining, or in distress. It asks why he applied for a grant for a company he was
“closing” — a present-tense characterization that places the state of closure at the moment of the
application, August 19, 2020. That temporal precision requires a specific factual predicate: that
Krivacy’s dissolution was not merely an eventual or undated outcome, but a contemporaneous,
ongoing fact as of the application date. Exchange One does not supply that predicate.

Mr. Capps’s testimony placed the fund transfer “around the August timeframe” — language that
encompasses before and after August 19 — and his subsequent testimony placed the actual
dissolution decision as a “later stage” development. The “around August” ambiguity, standing
alone, does not resolve whether closure was occurring at, before, or after the application date.
The specific temporal proposition — dissolution was occurring on and around August 19, 2020,
contemporaneously with the grant application — appeared only through AUSA Metzger’s
Exchange Two question premises, which embedded the proposition that Mr. Capps had “applied
for the dissolution of Krivacy in August of that year.” That proposition rested entirely on the
Cybertron International civil deposition transcript that was never admitted, never moved as an
exhibit, and that Mr. Capps specifically denied had refreshed his recollection. The government
cannot identify any admitted evidence that placed Krivacy’s formal dissolution proceedings as

contemporaneous with the August 19, 2020 application, because no such evidence was in the

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record. Exchange One established deterioration without temporal precision; Exchange Two
supplied the temporal precision through inadmissible question premises. It was this second
proposition — dissolution contemporaneous with the application — that supplied the jury’s
analytical framework for Count 10, as Juror Question | proves.

The juror questions are not internal deliberative communications; they were submitted in open
court, recorded in the trial transcript, and are part of the official trial record. Federal Rule of
Evidence 606(b), which bars testimony about internal mental processes, does not apply to
questions submitted in open court during trial.

Juror Question 1, at R.3.1080 — “Why would you apply for a grant for a company you were
closing?” — is the most forensically significant passage in the entire record for purposes of this
motion. It is direct, contemporaneous proof that at least one juror held the operative belief that
Krivacy was “closing” when the grant was applied for — and held it firmly enough to pose it as
an accusatory question, not a neutral inquiry. The juror had already accepted the “closing”
predicate. The fact that Mr. Capps explicitly denied it in response — testifying that the company
was “fully committed to moving forward” with “no intent to dissolve at that point in time” —
and the jury nonetheless convicted on Count 10, is the core of the prejudice showing.

Juror Question 2, at R.3.1082—1083 — “Are any of these three businesses still open, and if
closed, why did they close?” — further demonstrates the jury’s absorption of the closing
characterization. This question treats Krivacy’s closure as an established premise requiring
explanation, not an open factual question.

The defense counsel’s failure to object to Exchange Two 1s particularly consequential. The
“closing” inference arose not from deliberate prosecutorial argument — indeed, AUSA Metzger

did not assert in closing argument that Krivacy was closing at the time of the grant application,

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arguing Count 10 instead on the basis of inflated revenue figures — but from the organic
accumulation of trial testimony, uniquely enabled by the absence of a defense objection during
Exchange Two and the absence of any defense redirect addressing the temporal ambiguity
created by Exchange One. The temporal ambiguity from Exchange One’s “around August”
language, fused with Exchange Two’s unadmitted dissolution allegation through question
premises, created a prejudicial inference that defense counsel was uniquely positioned to address
and failed to do.

The verdict pattern corroborates this analysis. Mr. Capps was convicted on all Krivacy-related
counts — Counts 4, 7, 10, 12, 13, 14, and 15 — and acquitted on the Midwest Business Group
EIDL counts (3 and 6) and the second-wave money laundering counts (16-19). Exchange Two’s
inadmissible proposition targeted Krivacy specifically. The jury convicted on every Krivacy
count and acquitted on the Midwest EIDL counts where the inadmissible Krivacy-dissolution
narrative had less purchase. Under Strickland, 466 U.S. at 695—96, “a verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” The split verdict proves this case was not overwhelming. The
count-specific correlation between the inadmissible content and the conviction pattern
demonstrates that the taint made the difference.

The court’s own conduct compounds the prejudice analysis. Two distinct judicial failures
warrant separate attention. First, after Judge Melgren issued sua sponte interventions during
Exchange One at R.3.1004 and R.3.1006 — identifying the technique as improper — he gave no
curative instruction. This created an unanswered judicial flag: the court drew the jury’s attention
to an evidentiary irregularity without directing the jury to disregard it. Second, having expressly

identified the improper technique in Exchange One, the court permitted the identical technique to

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proceed entirely unchecked in Exchange Two. Under the Tenth Circuit’s framework in
Gabaldon, 91 F.3d at 93-94, the “curative acts of the district court” is an independent factor. The
record supplies the most defendant-favorable configuration: zero curative acts across both
exchanges, combined with an affirmative judicial signal that the content was improper. The
presumption that juries follow curative instructions — the government’s standard fallback — is
logically inoperative when no curative instruction was given. Greer v. Miller, 483 U.S. 756, 766
n.8 (1987). The jury had no basis to know it should disregard the content because it was never
told. Furthermore, the Tenth Circuit has recognized in analogous circumstances that curative
instructions may be insufficient to remedy certain categories of taint — including structural taint
created when the jury receives information about the defendant that infects the analytical
framework in which it evaluates the evidence. /ribe-Perez, 129 F.3d 1167, 1171 (10th Cir. 1997)
(holding that curative instructions could not eliminate the taint created when jurors were
informed of the defendant’s anticipated guilty plea, because the contamination operated at the
structural level of how the jury approached all subsequent evidence). The complete absence of
any instruction is categorically worse than a deficient one, and where — as here — the taint
operated by embedding an inadmissible factual predicate into the jury’s deliberative framework
before any objection was raised, the /ribe-Perez principle applies with full force.

F. Alternative: Freestanding Prosecutorial Misconduct Due Process Claim

In the alternative, and as an independent basis for relief if the IAC claims require further factual
development, Mr. Capps asserts a freestanding due process claim based on the prosecutorial
misconduct itself. This claim faces procedural default because it was not raised at trial or on
direct appeal. The IAC claims provide the required cause, and the prejudice analysis is

independently established without any circularity.

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The potential circularity concern — that the IAC claims’ prejudice showing depends on the
underlying claims’ merit, while the defaulted claim’s revival depends on IAC cause and
prejudice — does not arise here because the IAC prejudice for the appellate IAC claim (Claim
Four) rests on elements that exist independently of the freestanding claim’s legal
characterization. Specifically, the IAC prejudice for appellate counsel’s failure to raise the
prosecutorial misconduct is established through: (1) the juror questions, which are objective
record facts submitted in open court and not dependent on any legal characterization of the
underlying conduct; (2) the judicial sua sponte interventions, which are similarly objective
record facts establishing the error’s obviousness; and (3) the absence of any curative instruction,
which is itself a record fact. These three elements independently establish that the omitted claim
was plainly meritorious and that its omission prejudiced the appeal — without requiring any
assumption about the freestanding due process claim’s merit. The freestanding claim’s merit,
once reached, is established through the same record evidence. There is no circular dependency:
the IAC claim stands on record facts; the freestanding claim stands on those same facts evaluated
under a different legal standard. Murray v. Carrier, 477 U.S. 478, 488 (1986); Coleman, 501
USS. at 753-54.

On the merits, both exchanges satisfy the first prong of Gabaldon’s two-part test — the conduct
was improper — as established by Judge Melgren’s own sua sponte interventions. The second
prong — whether the misconduct warrants reversal — is assessed through the Martinez-Nava
three factors. The curative acts factor weighs against harmlessness in its most defendant-
favorable configuration: zero curative acts, combined with Exchange One interventions that drew
the jury’s attention to an evidentiary irregularity without directing it to disregard the content. The

extent factor weighs heavily: two separate extended exchanges satisfying Berger’s “pronounced

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and persistent” standard. 295 U.S. at 89. The role factor weighs most heavily: the juror questions
demonstrate that the inadmissible content drove the jury’s analytical framework on the precise
counts of conviction.

CLAIM TWO: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL — FAILURE TO
OBJECT TO THE RULE 24(c) ALTERNATE JUROR SUBSTITUTION

A. The Mandatory Requirements of Rule 24(c)(3)

Federal Rule of Criminal Procedure 24(c)(3) is unambiguous: “If an alternate replaces a juror
after deliberations have begun, the court must instruct the jury to begin its deliberations anew.”
The rule is mandatory, not discretionary. It exists to prevent precisely what occurred here: an
alternate who may have been contaminated during his dismissal period joining a deliberating
body that has already formed views, with the existing jurors simply briefing him rather than
beginning fresh.

B. Four Discrete Failures of Trial Counsel

First: failure to object to the substitution itself. The alternate was dismissed on December 19
with no on-record media admonition — while the sitting jurors received an explicit, detailed
instruction to avoid all press coverage of a trial the court acknowledged “has had a fair amount
of media coverage.” R.3.1167—1168. The alternate was then notified the same evening that he
would serve as a juror, giving him approximately forty hours of unsupervised exposure to that
media environment before trial resumed. R.3.1172—1173. No voir dire of the alternate regarding
potential contamination was conducted upon his recall. The minimum safeguards established in
United States v. Phillips, 664 F.2d 971, 995-96 (5th Cir. 1981) — assurances from the alternate

of no media exposure, confiscation of deliberation materials, individual assurances from sitting

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jurors, and a mandatory “begin anew” instruction — were absent in their entirety. Defense
counsel neither requested them nor objected to their absence.

Second: failure to obtain Mr. Capps’s personal consent to the substitution. The Tenth
Circuit in United States v. Baccari, 489 F.2d 274, 275 (10th Cir. 1973), cert. denied, 417 U.S.
914 (1974), recognized in a waiver context that “[rJecall of the alternate juror without the
defendants’ consent would have been improper and grounds for a new trial.” The court’s holding
was that the defendants had consented, rendering any objection waived. The precedential weight
of Baccari’s personal-consent recognition is that of a necessary premise of the waiver holding —
the Tenth Circuit’s implicit acknowledgment that personal consent is a required predicate, even
though the question of whether it is constitutionally mandated remains formally open after the
Supreme Court’s treatment in Olano. The most textually apposite affirmative authority for the
consent requirement is the Fourth Circuit’s decision in United States v. Virginia Erection Corp.,
335 F.2d 868, 872 (4th Cir. 1964), which reversed for a new trial where only counsel — and not
the defendants personally — had consented to a non-standard jury arrangement, holding that
“before any waiver can become effective, the consent of government counsel and the sanction of
the court must be had, in addition to the express and intelligent consent of the defendant.”

Mr. Capps acknowledges that Virginia Erection Corp. is out-of-circuit authority that predates the
modern Rule 24(c) by decades. Its significance lies not in its binding force but in the principle it
articulates: that jury composition is a personal right belonging to the defendant, not a procedural
matter counsel may waive unilaterally. Baccari’s waiver-context recognition of this same
principle within the Tenth Circuit, combined with Virginia Erection Corp.’s direct holding,
together supply the strongest available authority for the consent requirement in the absence of a

direct Tenth Circuit ruling. The Supreme Court in Patton v. United States, 281 U.S. 276, 312

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(1930), established that where defendants had “personally assented” to a jury composition
change, that personal assent was the constitutional predicate for proceeding. The Supreme Court
in United States v. Olano, 507 U.S. 725, 733 (1993), expressly left open “whether the defendant
must participate personally in the waiver” for Rule 24(c) purposes — it did not resolve the
question. Regardless of how a court might ultimately resolve the Rule 24(c) consent question,
Kerns’s failure to even seek Mr. Capps’s personal consent was independently deficient
performance under Strickland.

Third: failure to object to the legally inadequate “begin anew” instruction. The inadequacy
is most sharply illustrated by comparing what the court told counsel to what it told the jury. To
counsel: the jury must “not presume any prior decisions that were made but essentially review
their deliberations from the beginning.” R.3.1173. To the jury: “at least reexamine” and “in a
way it’s like starting over, although you can let him know where things are going on.” R.3.1174—
1175. The court then compounded the error by telling the jury that prior decisions “need to be
reviewed for his consent” — a formulation that invites eleven jurors to brief the alternate on
existing conclusions and seek his ratification of them. The contrast with United States v. Ashby,
864 F.2d 690, 694 (10th Cir. 1988), is stark. There, the district court asked whether any juror’s
impartiality had been compromised; instructed the jury to give no weight to statements of the
replaced juror; conducted individual voir dire of each member; and received individual
assurances that each could begin deliberations “as if the jury were leaving to deliberate for the
first time.” Jd. at 694. Here, none of those steps were taken, and defense counsel did not request
a single one.

Fourth: failure to object at the moment of the court’s direct invitation. When the court

announced to counsel that it was about to bring in the jury — stating the correct standard and

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asking “unless there’s anything that you want to talk about” — defense counsel said nothing.
R.3.1173. That silence in response to an explicit invitation to object is the most clearly deficient
moment of the entire proceeding. A competent attorney hearing the correct standard announced
by the court would have immediately requested that the court use the same language when
instructing the jury.

C. This Is a Structural Error — And Weaver’s Prejudice Requirement Is Independently
Satisfied

Jury composition is among the most fundamental constitutional rights in the American criminal
justice system. The Supreme Court recognized the constitutional dimension of Rule 24(c) in
Olano, 507 U.S. at 732. The Tenth Circuit has treated improper alternate juror substitution
without proper safeguards as implicating the constitutional right to a fair trial. Baccari, 489 F.2d
at 275; United States v. Beasley, 464 F.2d 468, 470 (10th Cir. 1972). The structural error doctrine
holds that such errors “affect the framework within which the trial proceeds” and are not subject
to outcome-based harmlessness analysis. Weaver, 582 U.S. at 295.

Mr. Capps acknowledges that Weaver also held that when a structural error is raised not on direct
review but through an IAC claim, the defendant must still satisfy Strickland’s prejudice prong.
Id. at 298-99. The structural character of the error does not, by itself, satisfy the prejudice
showing on collateral review. That showing must be grounded in concrete, non-circular evidence
of harm to the proceeding.

That showing is made here through the following independent evidence. First, the jury
deliberated approximately three hours in its original twelve-member composition without
reaching a verdict on any count — demonstrating genuine disagreement that precluded

conviction. On the reconstituted jury’s first full day of deliberation, it returned convictions on

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twelve counts after approximately seven additional hours. The transition from impasse to
conviction coincided precisely with the substitution of the alternate. Second, the split verdict —
twelve convictions and six acquittals — proves that this was a genuinely contested case in which
the jury exercised independent judgment count by count. The acquittals on Counts 3, 6, 16, 17,
18, and 19 demonstrate that the jury was discriminating, not rubber-stamping. In a case this
closely divided, the composition of the jury materially affected specific outcomes. Third, as
cumulative reinforcement of the first two categories rather than as an independent freestanding
showing, the forty-hour unsupervised exposure window, combined with the affirmatively
misleading instruction directing the jury to brief the alternate on conclusions already reached,
created a concrete risk that the alternate either imported extraneous information or was presented
with a fait accompli rather than a genuine opportunity to deliberate. Mr. Capps acknowledges
that Weaver forecloses reliance on the structural error itself as a basis for satisfying the prejudice
prong on collateral review. The third category is therefore positioned as additional factual
reinforcement for the first two categories, not as a substitute for them. The first two categories —
the impasse-to-conviction transition and the split verdict — independently satisfy Weaver’s
concrete prejudice requirement without any reliance on the absence of safeguards as its own
proof of harm. The absence of every required safeguard — no admonition, no voir dire, no
confiscation of deliberation materials, no individual assurances — amplifies the harm already
demonstrated by the first two categories, but the structural error doctrine’s specific concern about
outcome-based analysis does not attach to this additional factual showing because it is offered
only in corroboration, not as a circular stand-in for a concrete prejudice demonstration.

D. The Question Is Not Actual Contamination — It Is the Absence of Safeguards

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The government will argue that prejudice is speculative absent proof that the alternate actually
accessed news coverage. This argument fundamentally misframes the constitutional question.
The inquiry is not whether contamination can be proven after the fact — it is whether the
constitutional safeguards designed to prevent contamination were provided. Phillips, 664 F.2d at
990-91. The answer here is categorical: no admonition was given at dismissal; no voir dire was
conducted at recall; no deliberation materials were confiscated; no individual assurances from
sitting jurors were obtained; and no adequate “begin anew” instruction was delivered. The
government cannot cure the absence of every required safeguard by speculating that things
turned out fine. The safeguards exist precisely because contamination is difficult to detect after
the fact; eliminating all of them simultaneously creates a constitutional defect regardless of
whether actual contamination can be demonstrated.

E. The Absence of Published Reversals Does Not Limit Relief — But the Circuit Landscape
Must Be Addressed Directly

Comprehensive research confirms that no federal circuit court has reversed a conviction solely
for failure to give the Rule 24(c)(3) “begin anew” instruction since the 1999 amendment codified
the requirement. Every circuit that has addressed the issue — including the Second, Third,
Fourth, Fifth, Sixth, and Eleventh Circuits — has affirmed, applying harmless error or plain error
analysis and requiring a showing of actual prejudice. The Eleventh Circuit has specifically held
that the begin-anew requirement is not mandated as a matter of constitutional right. Mr. Capps
confronts this landscape directly.

The uniform affirmance record does not foreclose relief here, and the Capps fact pattern is
analytically distinct from the cases in which circuits affirmed. Those cases involved either a

proper begin-anew instruction challenged as inadequate in specific wording, or a brief procedural

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irregularity cured by a prompt instruction. The Capps record presents none of those mitigating
features and instead presents the most aggravated factual configuration in the published case law:
a forty-hour unsupervised exposure window with no media admonition at any point — neither at
dismissal nor at recall; a material gap between what the court told counsel it would instruct and
what it actually told the jury; a reconstituted jury instruction that affirmatively invited ratification
of prior conclusions rather than fresh deliberation; no voir dire of the alternate; no confiscation
of deliberation materials; no individual assurances from sitting jurors; and no personal consent
from the defendant. No published case affirming under Rule 24(c)(3) has confronted the
simultaneous absence of every required safeguard. The cases that affirmed did so because the
procedural irregularity was limited — a late or imperfectly worded instruction in a case where
the alternate was otherwise properly supervised. Here, the irregularity was total. The mandatory
rule was not imperfectly followed; it was functionally disregarded.

The absence of a prior circuit reversal means one additional thing: no prior defendant’s attorney
has objected to and pressed this specific claim through appeal. That is evidence supporting the
appellate IAC claim in Claim Four rather than evidence limiting the merits of this one. The legal
basis for the objection was firmly established at the time counsel failed to act. The mandatory
text of Rule 24(c)(3), combined with the specific aggravating facts of this substitution, provided
a plainly meritorious basis for objection even in the absence of prior circuit reversals. The
absence of a prior reversal means only that no prior defendant’s attorney has pressed this specific
claim through appeal — which is evidence supporting the appellate [AC claim in Claim Four
rather than a limitation on the merits of the underlying objection.

Three post-1999 Tenth Circuit cases touch alternate juror substitution; none addresses the

subsection (3) begin-anew requirement. United States v. Capps, 112 F.4th 887 (10th Cir. 2024)

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— the direct appeal in this very case — involved a substitution during deliberations and a
deficient “at least reexamine” instruction, but the Tenth Circuit analyzed only Rule 30(c) and
never reached Rule 24(c)(3). United States v. Varnedore, 73 Fed. Appx. 356 (10th Cir. 2003),
involved a pre-deliberation substitution and never analyzed begin-anew compliance. United
States v. Capehart, No. 22-2076, 2023 WL 4286725, at *3—4 (10th Cir. June 30, 2023)
(unpublished), addressed only the procedural prerequisites under subsections (1) and (2) — not
the substantive “begin anew” instruction under subsection (3).

Capehart requires affirmative distinction. There, the Tenth Circuit applied plain error review on
direct appeal to a Rule 24(c) violation involving the procedural prerequisites for substitution
under subsections (1) and (2) only, and found no prejudice because the alternate was “qualified,
instructed, and sworn like all other deliberating jurors.” 2023 WL 4286725, at 4. That analysis is
inapplicable here for three independent reasons: the subsection at issue is different, the
governing standard is Strickland* IAC prejudice, not Olano plain error; and the factual record
here — forty hours of unsupervised exposure with no media admonition, no voir dire, and an
affirmatively misleading instruction directing the jury to brief the alternate on conclusions
already reached — is categorically more aggravated than anything Capehart addressed.

F. Prejudice Is Also Independently Established — and Under Harmless Error, the
Government Cannot Prevail

Even under a non-structural analysis, prejudice is established. The alternate juror had
approximately forty hours of unsupervised exposure to a media environment the court itself
characterized as generating heavy coverage, with no admonition at dismissal and no voir dire
upon recall. The jury had already deliberated approximately three hours and formed preliminary

views before the alternate joined. Rather than beginning anew, the jury was affirmatively

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instructed to brief the new member on existing conclusions and obtain his consent to them. The
jury then deliberated approximately seven hours before convicting on twelve counts — a
timeline more consistent with an alternate being briefed on conclusions already reached than
with genuine re-deliberation from scratch.

Should the Court apply harmless error rather than structural error analysis, the government bears
the burden of proving harmlessness beyond a reasonable doubt under Chapman v. California,
386 U.S. 18, 24 (1967). It cannot carry that burden. No published post-Olano federal decision
has found a Rule 24(c) violation harmless under circumstances this aggravated.

At the outset, the harmlessness framework applicable to violations of the current rule must be
identified carefully. Federal Rule of Criminal Procedure 24(c) was substantially amended
effective December 1, 2002. The pre-2002 rule prohibited substitution of alternate jurors after
deliberations had commenced as a categorical matter. The 2002 amendment changed the rule to
permit such substitution, expressly conditioning it on the court’s instruction to begin
deliberations anew. The harmlessness reasoning in pre-2002 cases like United States v. Quiroz-
Cortez, 960 F.2d 418 (Sth Cir. 1992), was developed against the backdrop of an absolute
prohibition; under the current rule, the violation is not the act of substitution itself but the failure
to comply with the substitution’s mandatory conditions. Post-2002 courts applying harmlessness
analysis to begin-anew violations assess the concrete risk of prejudice created by the specific
procedural failures. See United States v. Capehart, No. 22-2076, 2023 WL 4286725, at 3-4 (10th
Cir. June 30, 2023) (unpublished) (analyzing harmlessness under current Rule 24(c) by
assessing whether alternate was qualified, instructed, and supervised). Quiroz-Cortez*’s
analytical approach — which examined the length of prior deliberation, the instructions given

upon substitution, and the circumstances of the alternate’s exposure — provides a useful

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structural framework for the post-2002 harmlessness inquiry, but it must be applied through the
lens of the current rule’s specific requirements.

Applying that analytical approach to these facts, every consideration cuts against harmlessness.
The forty-hour unsupervised exposure gap, combined with the total absence of safeguards,
exceeds any configuration found harmless in published post-2002 authority. The instructions
upon substitution affirmatively directed the jury to brief the alternate on existing conclusions
rather than to begin deliberating anew — the inverse of what the rule requires. Three hours of
prior deliberation was sufficient for the original twelve jurors to have formed and retained views.
And the split verdict — the most powerful indicator available — demonstrates that jury
composition materially affected specific count-by-count outcomes in a genuinely contested case.
The court in Quiroz-Cortez identified each of these considerations as relevant to whether the
irregularity created a risk of prejudice, 960 F.2d at 419-20, and each one here points toward,
rather than away from, a finding of harm. Under Chapman, where the verdict itself is in grave
doubt, the error is not harmless. O’Neal v. McAninch, 513 U.S. 432, 436 (1995).

CLAIM THREE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL — FAILURE TO
PRESERVE THE RULE 30 JURY INSTRUCTION OBJECTION

A. Deficient Performance

Federal Rule of Criminal Procedure 30(c) provides that “[t]he court must give the instructions
after the closing arguments are completed, or may give them before closing arguments, or both.”
The phrase “or both” makes plain that when a court elects to give preliminary instructions, it is
not absolved of its obligation to instruct the jury again at the close of evidence. The Tenth Circuit
recognized the force of this interpretation in United States v. Starks, 34 F 4th 1142, 1162-65

(10th Cir. 2022), collecting authority from multiple circuits criticizing pre-evidence-only

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instruction and identifying the governing principles: jurors have limited capacity to retain
complex legal concepts over a multi-day trial; recency bias ensures jurors better retain
instructions delivered close to deliberations; and oral reinstruction conveys the court’s authority
in a manner written copies cannot replicate.

This Court’s own conduct at trial confirmed the problem. In the same December 19 session in
which the court denied the reinstruction motion, the court acknowledged it could not provide a
transcript of Mr. Capps’s testimony — testimony the jury had heard that same day — and told
the jury to rely instead on “collective memory” and notes. R.3.1165—1166. The court
simultaneously acknowledged the limitations of juror memory while refusing to do anything to
address those limitations with respect to forty legal instructions delivered a week earlier. The
court’s scheduling-driven refusal — “I’m in Oklahoma Tuesday” — was its acknowledged
motivation. R.3.949.

Mr. Capps acknowledges that the Tenth Circuit cited and engaged Starks on direct appeal in this
case — but used it to hold that the Rule 30 error was not “plain,” because Starks itself explicitly
declined to opine on the propriety of pre-evidence-only instructions and reserved the question.
Capps, No. 23-3095, slip op. at 7-8. That engagement under plain error review does not answer
the de novo deficiency question under Strickland. The core of this IAC claim is that trial
counsel’s failure to invoke Starks and Rule 30(c) with a proper legal objection prevented the
issue from being presented under abuse-of-discretion review, where the burden would have been
on the government to justify the departure from Rule 30’s default. Instead, the appellate court
reviewed under the most defendant-hostile standard available — plain error — and predictably
found that Starks’s reservation of the question meant the error was not “plain.” That outcome

was the direct and foreseeable consequence of defense counsel’s failure to preserve.

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The structural difference between the two standards resolves the apparent tension. Plain error
review, as applied by the Tenth Circuit on direct appeal, asks whether the applicable law was so
clearly established at the time of the trial court’s ruling that the court’s deviation was obvious —
a backward-looking inquiry that gives courts of appeals the benefit of hindsight while demanding
that any “plain” error be measurable against established doctrine. The Tenth Circuit in Capps
found that the error was not “plain” because Starks had reserved the question of whether pre-
evidence-only instruction violates Rule 30(c). On that reasoning, the trial court’s ruling was not
obviously erroneous under established doctrine. Plain error review’s standard was not met.

De novo Strickland deficiency analysis is entirely different. It asks not what was obvious to an
appellate court reviewing after the fact, but what a reasonably competent attorney, exercising
professional judgment in December 2022, would have identified as worth preserving. Starks was
decided in May 2022 — six months before trial. A competent attorney who read Starks in the
months before trial would have encountered a Tenth Circuit panel expressing concern about pre-
evidence instructions, collecting multi-circuit authority criticizing the practice, reciting Rule
30(c)’s “or both” requirement, and then explicitly reserving the question of whether pre-
evidence-only instruction violates the rule. That reservation is not a signal to disregard the issue;
it is an invitation to preserve it. A circuit court that says “we find support for this argument but
need not resolve it today” is, to a competent appellate practitioner, saying: “object at trial, and
we will reach the merits.”

Far from defeating the deficiency claim, Starks’s explicit reservation 1s the very thing that made
the objection worth preserving. A competent attorney reading Starks in mid-2022 would have
understood that the Tenth Circuit had signaled receptivity to the argument, that preservation

would yield abuse-of-discretion review with the burden on the government, and that failure to

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preserve would doom the issue to plain error review under the very standard Starks’s reservation
created. Defense counsel did none of these things. He filed a motion citing no rule and no legal
authority, said “I understand,” and sat down. The failure is not that counsel should have
predicted how the Tenth Circuit would rule; it is that a competent attorney aware of Starks would
have understood that preservation was essential and legally straightforward.

B. Prejudice — And Preemptive Response to the Written Instructions Defense

Had counsel properly preserved the Rule 30 objection, the Tenth Circuit would have reviewed
the district court’s refusal under abuse of discretion, with the government bearing the burden of
proving harmless error. Instead, the court applied plain error review and affirmed. Critically, the
appellate court expressly acknowledged: “we find support for Mr. Capps’s argument.” Capps,
No. 23-3095, slip op. at 8. The court held he could not prevail only because the error was not
“plain.” Under abuse of discretion review with the burden reversed, the result would have been
different. That is the precise definition of prejudice under Strickland.

The government’s anticipated response — that the written instruction binders and defense
counsel’s references to three instructions during closing argument provided an adequate
substitute for reinstruction — fails for four independent reasons. First, Starks itself forecloses the
written-instructions cure argument. The Tenth Circuit expressly stated: “Many jurors may not
adequately comprehend written instructions. It is no secret that jury instructions are often written
in language more suitable for lawyers than laypersons.” 34 F.4th at 1166. Second, the jury’s own
conduct refutes the binder argument. A jury given physical copies of all forty instructions in
notebooks from the first day of trial nevertheless found it necessary to ask for a transcript of
testimony heard that same day. R.3.1162. If these jurors could not adequately recall same-day

oral testimony, the premise that they fully retained and correctly applied 53 pages of written

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legal instructions from a week prior defies logic and the court’s own acknowledgment that “I’m
sure they don’t remember” instructions given at the outset of trial. R.3.1163. Third, the closing
argument cure is dramatically overstated. Defense counsel referenced three of forty instructions
during closing: Instructions 6, 7, and a brief mention of the good faith defense. R.3.1144—1147.
Three mentions during closing argument as persuasion tools do not substitute for the court’s
reinstruction of the legal framework. Fourth, and most importantly: the Tenth Circuit’s Capps
analysis was conducted under plain error review. Under the correct standard — abuse of
discretion with the government bearing the burden of proving harmlessness — the partial cures
offered by the binder and three closing-argument references would be evaluated against an
evidentiary record showing forty instructions, a non-consecutive seven-day trial, and a jury that
demonstrably could not retain same-day oral testimony. The government cannot carry that
burden.

CLAIM FOUR: INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL —
FAILURE TO RAISE STRUCTURAL ERROR, PROSECUTORIAL MISCONDUCT,
AND SENTENCING PREDETERMINATION ON DIRECT APPEAL

A. The Governing Framework — Dead-Bang Winners and Documented Notice

Appellate counsel Jacob Rasch-Chabot raised one issue on direct appeal: the Rule 30 jury
instruction timing question, reviewed under plain error because trial counsel had failed to
preserve it. He omitted entirely three categories of substantially stronger claims: the Rule 24(c)
structural error from Claim Two, the prosecutorial misconduct from Exchange One and
Exchange Two documented in Claim One, and the judicial predetermination of sentence from
Claim Five. Each of these omissions is independently deficient performance under Strickland.

Together, they present a pattern of systematic abandonment that the First Circuit aptly described

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as choosing “to reject a lifeboat in favor of two lily pads” — “fecklessness is not a strategy.”
Flores-Rivera v. United States, 16 F.4th 963, 970 (1st Cir. 2021).

The dead-bang winner doctrine under Cook, 45 F.3d at 394-95, Cargle, 317 F.3d at 1202-05,
and Neill, 278 F.3d at 1057, protects counsel’s legitimate winnowing of weak claims. It does not
protect the abandonment of strong ones in favor of weak ones. Banks v. Reynolds, 54 F.3d 1508,
1515-16 (10th Cir. 1995) (deficient performance where counsel had “all information necessary
to raise” omitted claims and failed to do so). Smith v. Robbins, 528 U.S. 259, 285-88 (2000).
Jones v. Barnes, 463 U.S. 745, 751-54 (1983), protects winnowing of weak claims — not
abandonment of plainly meritorious ones. The dead-bang winner inquiry examines whether the
legal basis for the omitted claim was firmly established — not whether it had previously resulted
in a reversal.

Of the three omitted claims, the prosecutorial misconduct claim from Claim One most squarely
satisfies the dead-bang winner standard: the trial judge’s own sua sponte interventions constitute
objective, on-the-record documentation that the error was obvious without any argument from
defense counsel. For the Rule 24(c) structural error and the predetermination claim, the
appropriate characterization is that each rested on a firmly established legal basis whose
omission constituted plainly unreasonable professional judgment — particularly given that
counsel had documentary evidence of the predetermination and the alternate juror facts squarely
in hand.

B. First Omission: Rule 24(c) Structural Error

The Rule 24(c) alternate juror substitution issue was the strongest claim available on direct
appeal. It was a structural error apparent on the face of the transcript, and supported by Tenth

Circuit precedent recognizing the constitutional dimension of jury composition changes. Baccari,

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489 F.2d at 275 (recognizing, in a waiver context, the impropriety of substitution without
personal consent); Beasley, 464 F.2d at 470; Ashby, 864 F.2d at 694. Had appellate counsel
raised it, the Tenth Circuit would have confronted a record showing an alternate who had forty
hours of unsupervised media exposure, no voir dire upon recall, and an affirmatively deficient
“begin anew” instruction that told the jury to brief the alternate on existing conclusions. By
contrast, the only issue actually raised — the Rule 30 issue — was reviewed under plain error
precisely because trial counsel failed to preserve it, and the Tenth Circuit predictably affirmed.
What makes this omission particularly indefensible is that Rasch-Chabot did not simply miss the
alternate juror issue. He built the entire appeal around it. In the Opening Brief, Rasch-Chabot
specifically identified the alternate juror’s late addition as one of three aggravating circumstances
demonstrating that the district court abused its discretion in refusing to reinstruct, citing the
“‘late-arriving alternate juror” and the risk it created for meaningful comprehension of the legal
instructions. He had the factual predicate for the stronger claim — the alternate’s arrival, the
inadequate instruction at R.3.1174—1175, the forty-hour unsupervised gap — squarely in his
sights and deployed those same facts in service of the weaker, unpreserved Rule 30(c) argument.
He then failed to raise the standalone Rule 24(c)(3) mandatory-rule claim that the same facts
independently supported, even though that claim required no preservation and carried the
structural error label. United States v. Capps, 112 F.4th 887 (10th Cir. 2024), is the Tenth
Circuit’s direct appeal decision in this case. It affirmed solely on the Rule 30(c) issue Rasch-
Chabot raised and never analyzed Rule 24(c)(3). That silence is not precedent against this claim;
it is evidence of Rasch-Chabot’s deficient performance.

C. Second Omission: Prosecutorial Misconduct (Claim One) — Documented Written

Notice Six Months Before Briefing

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On May 31, 2023 — six months and thirteen days before the Opening Brief was filed on
December 13, 2023 — Mr. Capps forwarded to Rasch-Chabot a complete memorandum setting
out the prosecutorial misconduct theory from Exchange One and Exchange Two, with specific
transcript page and line citations. This is not a case where counsel failed to discover an issue
buried in a voluminous record. He received the complete theory, with a record roadmap, and had
more than six months to investigate and incorporate it.

This omission is independently deficient performance for two separate reasons. First, the claim
was plainly meritorious: the trial judge’s sua sponte interventions established the error’s
obviousness, and the juror questions provided documentary proof of jury impact. Counsel traded
this documented, substantive claim for a procedural Rule 30 timing issue. Second, Rasch-Chabot
could have framed the claim as layered IAC — arguing that Kerns was constitutionally deficient
for failing to object — which would have invoked de novo Strickland review rather than the
highly deferential plain error standard that controlled the Rule 30 claim.

D. Third Omission: Judicial Predetermination — Documented Written Notice Also Six
Months Before Briefing

On June 12, 2023 — also six months before the Opening Brief was filed — Mr. Capps
forwarded to Rasch-Chabot the Melgren email chain and specifically flagged in writing his
concern that the email demonstrated judicial predetermination of a custodial sentence. Appellate
counsel’s stated position — that the email could not be raised because it was not in the trial
transcripts — conflates “not in the transcripts” with “unraiseable on appeal.” A competent
appellate attorney, in possession of documentary evidence of sentencing predetermination for
over six months before filing the opening brief, had an obligation to find some procedural

pathway to preserve the issue and present it to the Tenth Circuit. Mr. Capps identifies the most

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natural vehicle — a limited remand to the district court for an evidentiary hearing under Fed. R.
App. P. 12.1, which authorizes the court of appeals to permit the district court to rule on a motion
during the pendency of an appeal. Whether or not that specific procedural vehicle had been used
in analogous contexts, the underlying obligation — to pursue some available mechanism to
develop and preserve a documented constitutional issue — is a fundamental professional norm.
An appellate attorney who holds documentary evidence of sentencing predetermination for over
six months, receives a specific written communication from the client flagging that evidence, and
then files an opening brief that does not mention the predetermination at all — through any
vehicle, through any theory, in any form — has not made a reasonable strategic judgment to omit
a weak claim. He has failed to engage with a documented constitutional claim entirely. Even
setting aside the specific limited remand mechanism, appellate counsel could have raised the
predetermination as a due process challenge on direct appeal in the appellate brief itself,
presented through Exhibit B as newly discovered evidence of judicial bias, or sought recusal in
the district court before the notice of appeal was filed. The complete failure to engage with the
Melgren email in any procedural posture, across any of these available vehicles, fell below the
objective standard of reasonableness. Rasch-Chabot did not seek a limited remand. He did not
raise the predetermination claim. He did not raise any sentencing claim despite a direct written
communication from his own client identifying the issue and its legal significance.

E. Prejudice — Three Stronger Claims Abandoned for One Weaker One

The prejudice analysis for each omitted claim follows from the analysis above. Had Rule 24(c)
been raised, the Tenth Circuit would have confronted the structural error doctrine and the most
aggravated factual record in the published case law. Had the prosecutorial misconduct been

raised as layered IAC, the Tenth Circuit would have applied de novo Strickland review to a

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record containing the judge’s own interventions and the jurors’ own written documentation of
the taint — an extremely strong record for deficiency and prejudice. Had the predetermination
claim been raised on direct appeal, the Tenth Circuit’s framework under Bustamante-Conchas
and its precedent of vacating Chief Judge Melgren’s sentences for procedural irregularity, Cozad,
21 F.4th at 1259, would have provided a viable pathway to vacatur of the sentence. Rasch-
Chabot chose instead to pursue one unpreserved, procedural Rule 30 claim under the most
deferential standard available, obtaining a predictable affirmance.

CLAIM FIVE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND DUE
PROCESS VIOLATION — JUDICIAL PREDETERMINATION OF SENTENCE AND
DENIAL OF MEANINGFUL ALLOCUTION

A. The Hill Framework and Its Exceptions

In Hill v. United States, 368 U.S. 424, 428 (1962), the Supreme Court held that a bare violation
of Rule 32’s allocution requirement does not by itself support § 2255 relief. But Hill explicitly
reserved two exceptions: cases where a defendant was “affirmatively denied an opportunity to
speak,” and cases where the violation occurred “in the context of other aggravating
circumstances.” Jd. at 429. The Tenth Circuit acknowledged this reservation in Martin v. United
States, 309 F.2d 81, 82-83 (10th Cir. 1962); Johnston v. United States, 303 F.2d 343, 344 (10th
Cir. 1962). Mr. Capps’s allocution claim does not rest on a bare Rule 32 violation; it rests on
three independent legal theories, each sufficient to support § 2255 relief.

B. Theory One: Ineffective Assistance of Trial Counsel (Strongest Pathway)

When trial counsel received the May 10, 2023 email from Chief Judge Melgren directing
changes to the PSR with specific reference to the Bureau of Prisons, he received documentary

evidence that the sentencing judge had predetermined a custodial sentence before the sentencing

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hearing. A competent attorney, upon receiving this evidence on the eve of sentencing, would
have: moved for the judge’s recusal based on evidence of prejudgment; objected at the
sentencing hearing to the predetermination; challenged the meaningful nature of allocution under
United States v. Landeros-Lopez, 615 F.3d 1260, 1264 (10th Cir. 2010); and ensured Mr. Capps
had a genuine opportunity to speak before a judge who remained open to persuasion. Trial
counsel instead forwarded the email with the note “Just in from Judge” and proceeded to
sentencing without raising any objection.

The Tenth Circuit’s en banc decision in United States v. Bustamante-Conchas, 850 F.3d 1130,
1139 (10th Cir. 2017), establishes the prejudice standard for allocution claims: “without some
exceptionally good reason to doubt that allocution would have mattered, the complete denial of a
defendant’s right to allocute raises a reasonable probability of a lesser sentence.” Three
independent reasons establish that allocution would have mattered here. First, the PSR
established a guideline range of 41 to 51 months imprisonment based on a total offense level of
22 and criminal history category I. The sentencing judge imposed 27 months — a downward
variance of 14 to 24 months below the guideline range. Second, defense counsel was arguing for
a non-custodial sentence; the Tenth Circuit’s decision in United States v. Elliott, 971 F.2d 620,
621 (10th Cir. 1992), holds that a court may impose a sentence of zero months imprisonment on
a Class B felony conviction without that constituting an impermissible sentence of probation, and
that argument was legally viable. Third, and most powerfully, the predetermination email
demonstrates the allocution opportunity was constitutionally hollow.

The Court must address directly the apparent tension between the first and third reasons. If the
judge exercised genuine discretion by varying downward 14 to 24 months, how can it be said

that the custodial outcome was predetermined? The answer lies in the distinction between the

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binary custody/no-custody determination and the specific term within the custodial range. What
the Melgren email establishes is that the judge had predetermined that Mr. Capps would be
incarcerated — that BOP would receive him as an inmate — before allocution began. The email
says nothing about the length of that sentence. The downward variance, on this account, reflects
real discretion exercised within an already-fixed custodial band: the judge genuinely deliberated
about how many months to impose, and concluded that 27 months was appropriate rather than 41
to 51. What was not genuinely open to allocution was the binary question — imprisonment or
not — because the predetermination email establishes the judge had already answered that
question in favor of incarceration.

This framing is consistent with Bustamante-Conchas’s core concern. The allocution right exists
to give a defendant a genuine opportunity to persuade the judge that a lesser sentence —
including, here, a non-custodial sentence — is appropriate. Where the judge has already decided
that incarceration will occur, allocution on the imprisonment question is constitutionally hollow
regardless of whether the judge remained genuinely open to the specific term within the custodial
range. The government’s anticipated argument — that the guidelines themselves presumed a
custodial sentence — fails on its own terms: the judge varied downward substantially,
demonstrating that the sentencing range effectively extended from zero (under Elliott) to at least
51 months. Predetermination of the custodial binary before allocution, in the face of a legally
viable non-custodial argument and a record of genuine downward discretion, is exactly what
Bustamante-Conchas prohibits.

C. Theory Two: Ineffective Assistance of Appellate Counsel

The Melgren email chain was in appellate counsel’s actual possession before the Opening Brief

was filed. On June 12, 2023, Mr. Capps forwarded the email chain to Rasch-Chabot and

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specifically flagged his concern that the email demonstrated judicial predetermination. The
Opening Brief was filed on December 13, 2023 — six months after Rasch-Chabot received that
communication. Appellate counsel’s stated position — that the email could not be raised because
it was not in the trial transcripts — reflects a failure to pursue available procedural mechanisms.
A competent appellate attorney would have sought a limited remand to the district court for an
evidentiary hearing on the sentencing predetermination issue, a recognized procedural vehicle
that would have allowed the development of a record in the district court and preserved the issue
for meaningful appellate review. Rasch-Chabot did not seek a limited remand. Had the issue
been raised on direct appeal through that mechanism, the Tenth Circuit’s framework under
Bustamante-Conchas would have required vacatur of the sentence, consistent with the Tenth
Circuit’s demonstrated willingness to vacate sentences imposed by Chief Judge Melgren where
the sentencing process was procedurally deficient. Cozad, 21 F.4th at 1259.

D. Theory Three: Due Process — Predetermination as an Aggravating Circumstance
Independent of the IAC claims, the judicial predetermination of sentence constitutes a violation
of Mr. Capps’s Fifth Amendment due process right to be sentenced by an impartial judge. Under
Withrow y. Larkin, 421 U.S. 35, 47 (1975), due process is violated when circumstances create
“such a risk of actual bias or prejudgment that the practice must be forbidden.” Liteky v. United
States, 510 U.S. 540, 555 (1994), addresses recusal standards under 28 U.S.C. § 455(a), not
sentencing predetermination directly. This motion acknowledges that doctrinal distinction. The
government will contend that Liteky’s recusal framework does not translate to a due process
sentencing predetermination claim, and that a judge who makes a routine PSR correction before

sentencing has not thereby disqualified himself from exercising judgment at the hearing. Those

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arguments are not without force, but they address a different legal theory than Theory Three
presents.

The due process argument does not depend on Liteky’s specific recusal standard. It depends on
Withrow, 421 U.S. at 47, which asks whether the circumstances created “such a risk of actual
bias or prejudgment that the practice must be forbidden.” The extrajudicial source principle that
Liteky articulates — that bias arising from outside the proceeding itself is particularly significant
— reflects a broader due process concern about impartiality that Withrow recognizes in the
sentencing context equally. The Melgren email is an extrajudicial communication: it was not
generated by anything that occurred in the courtroom, and it occurred the day before the
sentencing hearing. Its content — directing changes to the official court document that BOP
would use to classify Mr. Capps — reflects a presupposition about BOP’s custodial relationship
with the defendant that could only be operative if a custodial sentence were already determined.
Whether this specific fact pattern reaches the threshold Withrow sets is a question appropriate for
evidentiary hearing. At minimum, it raises a genuine factual dispute about the impartiality of the
sentencing process that the record alone — which does not include any explanation from the
judge about his intent in writing the email — cannot conclusively resolve. Chief Judge
Melgren’s May 10 email is an extrajudicial communication directing substantive changes to an
official court document based on the judge’s concern for BOP classification — a concern that
presupposes the defendant’s incarceration. This is precisely the “aggravating circumstance” that
Hill reserved for § 2255 relief. The Seventh Circuit reached the same conclusion in United States
v. Luepke, 495 F.3d 443, 446 (7th Cir. 2007), where language used before allocution rendered
that allocution constitutionally hollow.

E. The Mechanism for Resentencing Before a Different Judge

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The relief requested includes resentencing before a different judge. The legal authority for this
remedy derives from the court’s equitable power under § 2255, the due process principles
articulated in Withrow and Bustamante-Conchas, and the Tenth Circuit’s reassignment
framework. The appropriate threshold step is an evidentiary hearing at which the Court may
assess the full context of the May 10 email. Mr. Capps acknowledges that the email was copied
to both counsel, which the government may argue demonstrates the judge treated it as entirely
routine and administrative. That transparency, however, does not negate the email’s evidentiary
significance. A judge who openly communicates a predetermined outcome has demonstrated a
fixed conclusion, not open-mindedness. The copying of counsel makes the predetermination a
matter of record rather than a secret — it does not eliminate the constitutional concern. Whether
the email constitutes predetermination or routine administration is a factual question appropriate
for evidentiary hearing, after which the Court may determine whether reassignment is warranted
under the equitable principles articulated in Santobello v. New York, 404 U.S. 257, 263 (1971).
The Tenth Circuit has directed resentencing before a different judge where circumstances make
impartiality a legitimate concern. Cudjoe, 534 F.3d at 1356-57. In exercising that equitable
authority under Santobello, the relevant considerations are whether the original judge would
have difficulty setting aside prior conclusions in a resentencing, whether reassignment would
entail undue waste of judicial resources, and whether the appearance of justice would be served.
On this record, reassignment is strongly indicated: a sentencing judge who communicated a
predetermined custodial outcome to the probation office the day before sentencing would
necessarily have substantial difficulty approaching resentencing without the prior conclusion; the
resources required for resentencing before a new judge are not disproportionate to the length and

complexity of the original proceedings; and the appearance of justice is better served by a

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resentencing before a judge who has not previously expressed — in writing — a fixed view of
the appropriate outcome.

CLAIM SIX: CUMULATIVE ERROR — SYSTEMIC DENIAL OF A FAIR TRIAL AND
SENTENCING PROCEEDING

The Tenth Circuit recognizes cumulative error doctrine. United States v. Rivera, 900 F.2d 1462,
1469 (10th Cir. 1990) (en banc) (“the cumulative effect of individually harmless errors may
prejudice a defendant to the same extent as a single reversible error”). A cumulative error
analysis “aggregates all errors found to be harmless and analyzes whether their cumulative effect
on the outcome of the trial is such that collectively they can no longer be determined to be
harmless.” Cargle, 317 F.3d at 1207; Grant v. Royal, 886 F.3d 874 (10th Cir. 2018); Smith v.
Sharp, 935 F.3d 1064 (10th Cir. 2019); Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir.
2003). This claim is explicitly raised as required by Tenth Circuit precedent.

The errors established in this motion span three independent categories — defense counsel
failures, prosecutorial misconduct, and judicial error — which is precisely the configuration that
cumulative error doctrine addresses. Cargle, 317 F.3d at 1207 (legally diverse errors may be
aggregated). The critical analytical question is not whether each category of error, standing
alone, is individually reversible. It is whether the compounding effect of judicial scheduling
error, prosecutorial misconduct, and defense counsel failure operated simultaneously and
reinforcingly, such that any one of the three categories might have been survivable in isolation
but the combination was not.

Consider the cross-category interaction. The court’s scheduling-driven refusal to reinstruct
created a jury deliberating with week-old instructions on forty complex legal standards. That

same scheduling pressure necessitated the non-consecutive trial format that the court itself called

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“insane” and that created the conditions for the alternate juror substitution. The prosecution’s
improper cross-examination technique embedded inadmissible content into the jury’s analytical
framework — content that defense counsel was in the best position to exclude and failed to. The
reconstituted jury — joined by an alternate who had forty unsupervised hours in a high-coverage
media environment and was instructed to receive a briefing from existing jurors rather than begin
anew — then deliberated on charges that included the Krivacy counts tainted by the unadmitted
dissolution allegation. And the sentence that resulted was imposed by a judge who had, by
documentary evidence, determined the custodial outcome before allocution. Each error amplified
the others. The unreinstruction left the jury without refreshed guidance on the burden of proof
and good faith defense. The tainted cross-examination embedded inadmissible factual premises
into that same unguided deliberation. The defective substitution introduced an alternate into
deliberations already compromised by both the stale instructions and the embedded inadmissible
content. And the sentencing predetermination ensured that even if the jury’s verdict had been
properly reached, the sentence would have been constitutionally infirm. No published Tenth
Circuit decision has confronted a record combining all three categories of error to this degree.
VI. CUMULATIVE PREJUDICE ANALYSIS

The evidence was not overwhelming. The jury acquitted on six of eighteen submitted counts. It
deliberated approximately three hours without reaching a verdict before being reconstituted, and
then needed approximately seven more hours to convict — in a deliberation room with an
alternate who had been unsupervised for forty hours in a high-profile media environment and
who was, by the court’s own instruction, being told of “where things are going” rather than
beginning fresh. The good faith defense found purchase on a substantial portion of the charges.

Complex financial transactions on eighteen separate counts required precise understanding of the

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burden of proof — burden-of-proof instructions delivered a week before deliberations and never
refreshed.

The government’s anticipated responses on each claim fail cumulatively for the reasons set out
above. On Rule 30: Starks forecloses the written-binder cure; the jury’s own transcript request
proves the memory limitation; and the entire appellate analysis was conducted under plain error,
the most defendant-hostile standard available. On Rule 24(c): even under harmless error, the
government cannot carry the Chapman burden against a forty-hour gap, absent safeguards, three
hours prior deliberation, and a split verdict. On prosecutorial misconduct: the juror questions
convert speculative prejudice into documented prejudice, and the government cannot identify
what properly admitted evidence would have independently generated those precise inquiries —
particularly the “closing” characterization, which required the unadmitted Cybertron transcript
content to advance from Exchange One’s temporally ambiguous financial deterioration evidence
to the specific contemporaneous dissolution premise that Juror Question 1 reflects. The
government cannot explain why Juror Question 1 posed the closing of Krivacy as a present-tense
accusatory fact rather than as an open inquiry, without reference to Exchange Two’s embedded
proposition about dissolution papers filed “in August of that year.” On sentencing: the judge’s
own email supplies the evidence of predetermination, and Bustamante-Conchas creates a
presumption of prejudice that the government cannot rebut by pointing to the guideline range
when the judge varied downward by 14 to 24 months and when the email’s concern was
classification, not the binary custody question.

Individually, each of these failures would be sufficient to support relief. Cumulatively, they

establish a proceeding so fundamentally compromised across its trial, deliberation, and

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sentencing phases that the constitutional guarantee of a fair trial was honored in form but denied
in substance.

VII. REQUEST FOR EVIDENTIARY HEARING

Under 28 U.S.C. § 2255(b), this Court must grant an evidentiary hearing unless the motion and
record “conclusively show that the prisoner is entitled to no relief.” The transcript record on its
face establishes the Rule 24(c) and Rule 30 violations, the two exchanges and the judicial
interventions, and the juror questions. The Melgren email establishes the predetermination.
These facts, standing alone, demonstrate entitlement to relief or at minimum to a hearing. Facts
requiring further development outside the existing record include: (1) whether and to what extent
the alternate juror was exposed to media coverage during the approximately forty-hour
unsupervised gap; (2) trial counsel’s actual reasoning for failing to make Rule 30, Rule 24(c),
and prosecutorial misconduct objections, and for failing to seek Mr. Capps’s personal consent to
the substitution; (3) appellate counsel’s reasoning for omitting the Rule 24(c) structural error, the
prosecutorial misconduct claim, and any sentencing challenge, despite holding documentary
evidence for six months before filing; (4) what Mr. Capps would have said in allocution had he
been given a meaningful opportunity to do so before a genuinely open-minded sentencing judge;
and (5) whether a resentencing before a different judge would produce a different outcome with
respect to the length and conditions of supervised release.

VIII. RELIEF REQUESTED

For the foregoing reasons, Defendant Michael R. Capps respectfully requests that this Court:

1. Vacate Mr. Capps’s conviction and order a new trial based on the ineffective assistance of trial
counsel Kurt P. Kerns, including: (a) failure to preserve the Rule 30 jury instruction objection;

(b) failure to object to the alternate juror substitution without voir dire, individual juror

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assurances, or a legally sufficient “begin anew” instruction; (c) failure to obtain Mr. Capps’s
personal consent to the non-standard jury composition; (d) failure to object to Exchange One and
Exchange Two during cross-examination, and failure to request curative instructions; and (e) the
cumulative prejudice of all such failures. This relief is supported by Claims One (Prosecutorial
Misconduct), Two (Rule 24(c)), Three (Rule 30), and Six (Cumulative Error).

2. Alternatively, vacate Mr. Capps’s conviction on the Krivacy-related counts (Counts 4, 7, 10,
12, 13, 14, and 15) on the basis of prosecutorial misconduct documented by the juror questions
and count-specific verdict pattern, where the inadmissible content from Exchange Two —
resting on the unadmitted Cybertron civil deposition transcript — embedded the “closing”
characterization that Juror Question 1 confirms the jury adopted as a factual premise. This relief
is supported by Claim One, Section E, and the freestanding due process claim in Claim One,
Section F. The Rule 24(c) structural error in Claim Two, which affected all deliberations, could
independently support full reversal on all counts.

3. Alternatively, vacate Mr. Capps’s sentence and order resentencing before a different judge,
based on: (a) the pre-sentencing judicial predetermination of sentence documented in Exhibit B;
(b) the failure of trial counsel to raise any challenge to that predetermination; and (c) the failure
of appellate counsel to raise the predetermination claim despite holding documentary evidence
for six months before filing; and specifically, in the context of resentencing, order modification
or reduction of the twenty-four month supervised release term and its conditions, pursuant to this
Court’s equitable authority under § 2255 and the Tenth Circuit’s reassignment framework. This
relief is supported by Claim Five.

4. Alternatively, order an evidentiary hearing to develop the record on all issues raised herein;

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5. Grant a certificate of appealability on all claims, as reasonable jurists could debate whether
this Court is correct in its assessment of the constitutional claims presented herein, including the
prosecutorial misconduct, Rule 24(c) structural error, Rule 30 preservation failure, and judicial
sentencing predetermination claims; and

6. Grant any further relief that the Court deems just and proper.

Respectfully submitted,

Date: February 24, 2026

Michael R. Capps

Register Number: 66142-509

Defendant Pro Se

VERIFICATION

I, Michael R. Capps, declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the
foregoing Motion to Vacate, Set Aside, or Correct Sentence and Memorandum of Law in
Support are true and correct to the best of my knowledge and belief. Executed on February 24,

2026.

Michael R. Capps

Register Number: 66142-509

Defendant Pro Se

CERTIFICATE OF SERVICE

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I hereby certify that on February 24, 2026, I filed the foregoing Motion to Vacate, Set Aside, or
Correct Sentence with the Clerk of the Court through the CM/ECF electronic filing system,
which will send electronic notification of such filing to all registered participants, including
counsel for the United States of America, United States Attorney’s Office for the District of

Kansas, 1200 Epic Center, 301 N. Main Street, Wichita, Kansas 67202.

7 WA 7 LL

Michael R. Capps

Register Number: 66142-509

Defendant Pro Se

EXHIBIT LIST

Exhibit A: Sample of Trial Media Coverage — Wichita, Kansas, December 13—21, 2022
Exhibit B: Email Chain, Eric F. Melgren to Jeffrey Blessant, U.S. Probation Officer, May 10,
2023, forwarded by Kurt P. Kerns to Michael Capps, then forwarded by Michael Capps to Jacob
Rasch-Chabot on June 12, 2023 (Evidence of Judicial Predetermination of Custodial Sentence
and of Appellate Counsel’s Actual Knowledge)

Exhibit C: Memorandum from Michael Capps to Jacob Rasch-Chabot, May 31, 2023,
transmitting complete prosecutorial misconduct theory with specific transcript citations

(Evidence of Appellate Counsel’s Documented Notice of Exchange One and Exchange Two)

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